Bloggers and Shield Laws

BLOGGERS AND SHIELD LAWS….There aren’t many subjects that unite the left and right wings of the blogosphere, but there’s always one sure fire winner: slights ? real or perceived ? aimed at the blogosphere itself. The current favorite is the possible passage of a federal shield law, which would protect reporters from being forced to reveal confidential sources in court. The problem, of course, is the possibility that such a law might not apply to bloggers.

Here’s Instapundit, from the right: “I think that such special privileges are a bad idea, as I’ve said here before. But to the extent that they apply only to Registered Official Journalists…rather than to the activity of reporting, I think that they’re also deeply troubling.”

And Atrios, from the left: “If a source tells me something newsworthy and I put it on the blog then I’m practicing journalism and I should get the same protections as anyone else practicing journalism. It isn’t about creating a special class of people who are above the law, it’s about understanding that certain types of activities deserve certain protections because it’s in the public interest…”

Even some journalists are leery of a federal shield law, fearing that it amounts to a kind of tacit “licensing” of who’s a journalist and who’s not.

But this is all very strange. After all, nearly every state in the union has a shield law of some kind, and you never hear a peep of complaint about them, least of all from professional journalists themselves. But if a shield law is a good idea for state courts, why isn’t it a good idea for federal courts too? What’s the difference?

Now, despite the fact that reporters have badly abused their use of faux anonymous sources in recent years, I happen to think that protecting their access to real anonymous sources is important. Valerie Plame aside, the Bush administration has been unusually aggressive about investigating leaks of confidential information, and I simply don’t trust them to show good judgment in this area. For that matter, I don’t trust whoever we elect in 2008 either. We’ve seen longstanding norms of conduct deteriorate too much recently for me to take any comfort in the fact that reporters are seldom hauled in front of judges and tossed in jail. This is the “things have worked fine for 200 years” argument, and I’m not buying. With the crew we currently have in office, the fact that it hasn’t happened before is no guarantee that it won’t become SOP in the future.

At the same time, I agree with both Glenn and Atrios that it’s the activity of journalism that should be protected, not any particular medium. There’s an obvious objection to this, of course: if an activity as common as blogging provides protection against testifying in federal court, the Corleone family would just set up a blog and then sit back and happily thumb their noses at prosecutors forever.

This is unpersuasive. It’s perfectly possible to define “journalism” in a reasonable way, and judges are quite capable of distinguishing between genuine journalism and obvious ploys. It’s a matter of intent, and judges rule on stuff like that all the time. They won’t do it perfectly, but even a modest check on executive branch zeal is worth having.

At an absolute minimum, I think we should pass a federal shield law simply to make sure everyone actually knows what the law is. Even if it explicitly provides no protection, we should codify that. But I think we should go further, providing a qualified reporter-source privilege for anyone actively and sincerely engaged in an effort to inform their readers about affairs of public interest. For my money, the work that journalists do in exposing government secrecy is every bit as important as the work that therapists and priests do, so why not grant them similar privileges?

I understand that this is not a good time to be making this argument. Judith Miller is hardly a poster child for a federal shield law (although it’s possible that a well written shield law wouldn’t have protected her, since it’s not clear she was engaged in journalism, even if she is a journalist). But the broader principle is more important. If it’s really true that reporters are seldom forced to testify about anonymous sources anyway, why not codify that now before someone decides we’ve been going too easy on them all these years? And if you think this notion hasn’t already crossed a few people’s minds, think again. After all, don’t you know there’s a war on?

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.